travelling in an opposite direction along the same for that purpose they are properly placed there. liams had obtained a rule nisi to enter the verdict for line; that a collision took place, which caused the It would not be an inquisition at all without the defendant. death; and that all the engines, tenders, and carriages, were deodand. The Court quashed the inquisition, on the ground that the above paragraph was insensible as it stood; and that there were no words, the rejection of which would clearly make it intelligible. the jury.] The great fault is in stating the ad- Hill, Q. C., in a former Term, had obtained a rule calling on the solicitor of the Treasury to shew cause why a coroner's inquisition, removed into this Court by certiorari, at the instance of the Midland Railway Company, should not be quashed. The inquisition commenced in the following form:"Nottingham-gible. shire, to wit: an inquisition taken at the house of one known as The Wheatsheaf," in the parish of L., in the county of N., on the 22nd day of Nov., 1844, and thence duly adjourned to the county hall, &c., on the 2nd day of December, and then and there duly holden, by adjournment, on the said 2nd day of December, and thence duly adjourned, &c., and then and there duly continued, and holden by adjournment before Christopher Swan.., gentleman, one of the coroners for the said county, on view of the body of William Barnes, lying dead in the parish of Lenton, in the county aforesaid, on the day and year first foresaid, and upon the oaths of good and lawful men of the county." The inquisition then went on to state that the jury, being duly sworn upon their oaths present, "that on, &c., in the parish of L., &c., a certain locomotive steam engine, numbered 48, with a certain tender attached thereto and worked thereby, and also with divers, to wit, three carriages for the conveyance of passengers for hire, upon, &c. a certain railroad or tramway, called the Midland Railway, there situate, and which said carriages respectively were then and there attached and fastened together to the said tender, and were then and there propelled by the said locomotive steam engine; and which said steam engine, tender, and carriages were then and there moving and travelling upon and along the said railway, and were then and there moving towards the town of Nottingham; and the jurors aforesaid on their oath say, that whilst the said steam engine, tender, and carriages were so moving and travelling along the said railroad, a certain other locomotive steam engine, with tender and carriages attached, was travelling and moving in an opposite direction upon and along the said railway." The inquisition then proceeded to state that the two trains came into collision; that the deceased was seated in one of the carriages; that by the violence of the collision he was thrown upon the ground, and so received various mortal injuries, of which he died. It then found that all the engines, tenders, and carriages were moving to the death; that they were the property of the company, and their value 1,000l. Waddington, in last Michaelmas Term (Saturday, Nov. 8.) shewed cause. The first objection to this inquisition is, that it is not alleged to have been taken either on view of the body, or before a coroner of the county, or upon the oaths of a jury of the county; and the argument on that point will be that those circumstances ought to have been stated separately with regard to each adjournment; but it is submitted that it is not necessary; this last clause of the sentence overrides and applies to the whole. The next objection is, that it does not appear within what county the mortal injuries were received, but the venue is Nottinghamshire, and the words "then and there" are used throughout in the statement of every material fact. The third objection, that the time of receiving the mortal injury is not stated, is cured by 6 & 7 Vict. c. 83, s. 2. The three remaining objections are substantially the same, that it does not appear with sufficient clearness what were the chattels moving to the death, and in what way the collision happened. This depends mainly upon a grammatical error in the wording of the inquisition; the first sentence describing the mode in which the collision occurred has no grammatical termination; but the meaning is perfectly obvious, and if the Court will reject, as surplusage, the words "which said steam engine, tender, and carriages," the sentence will be complete and intelligible. Then as to the chattels moving to the death, that does not mean only those chattels which immediately cause the death; the forfeiture extends to every other chattel in motion with the principal chattel. Omne quod movel eo, quod hominem occidit deodandum. (Fitz. Nat. B. Stan. P.C. Lib. 1, c. 12, p. 20, a; 1 Salk. 220.) It is quite unnecessary to set out the mode in which each particular chattel contributes to the death. He also cited Jervis on Coroners, c. 7; 1 Stark. on Cr. Pleading, 247; and R. v. Edwards, Leach, 127. JUDGMENT. Cur. adv. vult. LORD DENMAN, C. J., now delivered the judg. Tuesday, Feb. 10. Rule absolute. DOE dem. WOODHOUSE v. POWELL. In Michaelmas Term last, Smythies and Yardley shewed cause; citing Elwin v. Noft (2 Comp. 995): Blunt v. Clark (2 Sid.); Doe v. Waller (7 T.R.430) Brydges v. Chandos (2 Burr. 1665); Mortgages, 79. In Hilary Term, and sittings after, the rule was supported by Preston E. V. Williams and Davison.-It was absolutely necessary that the lessor of the plaintiff should claim this property as leasehold, and from administration of T.; and in order to authorise the deed of 1784 he was bound to produce the probate of E.'s will or a grant of letters of administration. The suggestion is that they might be presumed; but the doctrine of presumption does not apply to this case. The Courts have presumed title to justify possession; but here there is no adverse possession; the parties were in possession who would have been if administration or probate had been granted; but a reference to the records of the Ecclesiastical Court would shew at once whether probate had been granted or not. If it were proved that there was a gap in the records of that court, and that for a certain period the grants of probate or administration had been lost, then the presumption would arise. [Lord DENMAN, C.J.There is a case in which the enrolment of the city tithes decree was presumed, though the records had been regularly kept, and no trace of that decree was found.] Yes; but in that case search was shewn; which distinguishes it from the present; for non constat but that there may be at the present moment amongst the records of the Ecclesiastical Court a grant to another person. Cases referred to: Erle v. Baxter (2 W. Blackst.); Roe v. Deverell (1 H. Blackst. 446); Dee dem. Priestly v. Callaway (6 B. & C.); Allen v. Dundas (3 T.R. 125); Doe v. Weller (4 T.R. 478); Wootton Y. Heale (Wms. Saund.) Lord DENMAN, C.J.-It appears to me that we need not enter into the doctrine of presumptions as applied to acts of courts generally; because under the particular circumstances of this case no title at all is shewn, unless the term created in 1730 is proved to be in those from whom the lessor of the plaintiff claims; and that certainly is not done without proof of the mode in which the possession was acquired. The possession itself being consistent with a variety of circumstances, it was essential in tracing the conveyance of the term that proper search should at all events have been made for the instrument by which alone it could be conveyed. WILLIAMS, J.-In the cases collected in Reed v. Booker (3 T. R.) which require the presumption of a deed, grant, or recovery, the possession was such as to require some such foundation as a deed, grant, or recovery, to justify it; but if the possession may be otherwise accounted for, as here, the ground for the presumption entirely fails. and COLERIDGE, J.-I think that the supposition of its being freehold property is got rid of, because the case was launched as a title to leasehold; and the lessor of the plaintiff endeavoured to deduce his title in that way; but then he came to certain gaps; he asks that they should be supplied by presumption; but the difficulty is not only to presume the instru ments, but to explain their absence. Now, the reci tals in the deed shew that the possession is in the same persons in whom it would have been if the missing instruments had existed; so that no person was interested in disturbing the arrangement. The ground, therefore, for any presumption fails; but even if there were ground for presumption, I think some explanation of the absence of the instruments is necessary; and I ground my decision mainly on this, that no explanation or excuse is offered for the non-production of the probate. Rule absolute. In ejectment by assignee of a term, the lessor of the At the trial, no probate of her will or letters of administration to E. W. were produced, but it was If DE MEDINA V. GROVE. issuing a fi. fa. for more than was due upon the judg ment, it is not sufficient to state that the defendant issued the execution knowing that the amount for which it was issued was not due, without the usual averments of malice and the absence of a reasonable and probable cause. The rightfulness of issuing execution upon a judgment remaining unsatisfied cannot be questioned by the execution debtor, in an action for money had and more than is due is levied, the remedy is by card; received, against the creditor. plication to the equitable jurisdiction of the Court; or by an action on the case, if malice can be shewn. These were two actions between the same parties, ground appearing by affidavits, and partly for defects on the under the circumstances detailed in the judgments admitted that the affidavits had been answered. No con The action for money had and received was Macaulay being heard, on the ground that the pante rule Shee, Serjt., Allen, and V. Lee, for the defends the must apply as if the argument were upon a concilium. The Watson, J. C. and Corrie, for the plaintif, t. Hind Court, however, heard Macaulay, and Waddington was al- following authorities were cited: Gildebrand art. lowed to reply; Lord Denman, C. J. intimating that the proper course would have been to have mating that the bard (Noy, 99); Fermor's case (5 Rep. 78): S [COLERIDGE, J.-The words at the end of the charged upon the facts, and then to have applied for a con- Lord Alvanley (2 Bing. 325); Duchess of Kingston's case (20 State Trials); Moses v. McFarlane (2 Bur. Hill, Q. C. and Macaulay, contrà.-The late statute shews, at all events, that theretofore very tech nical objections had been upheld, and it only cures or defects. inquisition does shew that the whole proceedings were taken upon oath upon view of the body; but only that the proceedings after the last adjournment were so; and a view of the body is necessary before going into the inquest at all. (R. v. Farrand, 3 B. & Ald. 260. (a) The rule in this case had been obtained partly on a face of the inquisition; but when the case came on, it was sentence are intended to override the whole; and cilium. and 1,009); Robson v. Eaton (1 D. & R. 62); Cowan v. Braidwood (2 M. & G.); Wentworth v. Buller (9 B. & C. 40); Duke de Cadaval v. Collins (4 A. & E. 858); Pitt v. Coomes (2 A. & E. 459); Hamlet v. Richardson (9 Bing. 644); Cobden v. Kendrick (4 T. R. 432); Marriott v. Hampton (7 T. R. 269); Philips v. Pidden (Ambl. 763); Miles v. Duncan (6 B. & C. 679); Moore v. Bowmaker (7 Taunt.) Saturday, Feb. 14.-Judgment was delivered in both as follows: JUDGMENT. COURT OF COMMON PLEAS. REGISTRATION APPEALS. BOROUGH OF DARTMOUTH. KNOWLES, Appellant, and BROOKING, Respondent. When the place of abode of the objector described in the notice of objection, is his true place of abode, although it is not the same as that described on the register, such notice of objection complies with the forms contained in Schedule B, Nos. 10 and 11, 6 Vict. c. 18, and is sufficient. Maule, J. dissenting. In this case John Brooking, on the list of persons entitled to vote in respect of property occupied within the parish of Saint Saviour, in the borough of Dartmouth, objected to the name of John Knowles being retained on the said list. The notice of objection sent to the said John Knowles by the said John Brooking was as follows: "To Mr. John Knowles.-I hereby give you notice that I object to your name being retained on the list of persons entitled to vote in the election of a member for the borough of Clifton Dartmouth Hardness. Dated this 22nd day of August, 1845. (Signed) "JOHN BROOKING "of Higher-street, Dartmouth. "On the list of voters for the parish of Saint Saviour." been partly satisfied by payments in part satisfaction, reverse them in effect by an action to recover back the and the defendants wrongfully and knowingly enforced amount levied. No case was cited, nor are we aware them for the whole amount. Prima facie the plaintiff of any that could be cited, to warrant such an has a right to take out execution on an unsatisfied opinion; and we, therefore, think the rule should be judgment for the amount of the debt or damages re- absolute for a nonsuit. covered. If the judgment has been satisfied in part, application may be made to the Court of Chancery, or the equitable jurisdiction of the courts of common law, to restrain the plaintiff from taking out execution, or for taking under it more than is due. But great inconsistency and inconvenience might arise if the Lord DENMAN, C. J.-This was an action on the merits and force and effect of a judgment remaining case for taking the plaintiff in execution on a judg- wholly unsatisfied, but good on the face of it, ment for more than was due upon it, and for taking could be generally or partially questioned in a the goods of the plaintiff in execution on another collateral action such as this, in which the gist of the judgment for more than was due upon that. The de-action, as appears by the declaration, is the levying claration contained two counts; first, that one Pa- the whole amount after it had been partly reduced by trick Strachan recovered a judgment against the the plaintiff. If there had been an allegation of plaintiff for 1,0601. 10s. damages, for a breach of malice, and want of reasonable and probable cause, covenant that was assigned to the defendant Grove, that would have been the gist of the action, and partand that 1,000l. had been paid to Grove, in part satis- payment clearly would have been a circumstance faction of the damages, and Grove and the other de- which alone could not entitle the plaintiff to maintain fendant, his attorney, well knowing this, but intend- the action. Upon the argument many cases were ing to injure the plaintiff, issued a ca. sa. on a cited, but none which appeared to warrant such a dejudgment, and wrongfully caused it to be indorsed for claration as the present." In Crozer v. Pilling (4 B. the whole sum of 1,0601. 10s. and wrongfully and & C. 26), in which the cause of action was refusing knowingly caused the plaintiff to be taken and impri- to discharge a person taken under a ca. sa. after tender soned under that writ, until the plaintiff gave a war- of debt and costs, the declaration contained an averrant of attorney for 2,1647. to secure payment of ment that the refusal was malicious, and without 1,0817. 14s. 2d. whereas, at the time of taking the reasonable and probable cause. In a case in 3 Esp., plaintiff under the writ, and the giving the war-which was an action for permitting and suffering the rant of attorney, much less than 1,0601. was plaintiff to be arrested after payment of debt and due and owing upon the judgment. The second costs, the Court held the action would not lie, notcount stated the defendant Grove had entered up withstanding the declaration contained an allegation judgment on the warrant of attorney given by the of malice. In Scherbel v. Fairburn (1 Bos. & P. 388) plaintiff for securing the sum of 1,0817. 14s. 2d. ; that it was held would not lie for not countermanding a a large sum had been paid to Grove in part satis- writ after payment of the debt, without an allegation of A notice similarly signed was sent by the said John faction of the debt so secured; that the defendants malice, which, it was said by the Court, was a necessary Brooking to the overseers of Saint Saviour's. The caused a fi. fa. to be issued on the judgment, and ingredient for the maintenance of the action. Saxon v. place of abode of the said John Brooking was stated wrongfully and knowingly caused the writ to be in- Castle (6 A & E, 652,) is in point with the present; in the said list to be "New Road." The said John dorsed, to levy 3201. and directed the sheriff to seize the defendant there, as here, was stated to have is- Brooking had offices in "New Road," and a servant the goods of the plaintiff, and to keep them until she sued and executed a writ of ca. sa. endorsed to levy lived in the house to look after them, but the said paid the 3201.; whereas a much less sum than 3201. more than was due, and in that case, though the John Brooking did not live there either at the time of was then due and owing upon the judgment. The facts proved supported the plaintiff's case, the judg- the publication of the lists by the overseers, or at the defendant pleaded, among other pleas, not guilty ment was arrested because the allegation of malice time of the service of the notice. The said John generally, and as to the first count, that the sums of was omitted in the declaration. Justice Littledale Brooking's place of abode was truly described in the money mentioned in the first count were not received said, in his judgment in that case, "In trespass, notices of objection, and his place of abode was stated by Grove on account of or in part satisfaction of the where the act of arrest is in itself illegal, no averment in the list of voters for the parish of Saint Petrax, damages in the first count mentioned; and further, of malice is necessary; but in case for suing out a another of the parishes comprised within the said as to the first count, that the amount due on the writ for more than is due, according to the precedents borough, to be in "Higher-street." It was urged judgment was not less than 1,0607. 10s. There were and to the principles of distribution between actions on behalf of the said John Knowles, that John also similar pleas to the second count. At the trial the of trespass on the case malice must be alleged." Brooking's place of abode on the notices of objection plaintiff obtained a verdict on all the issues against Many other cases to the same effect might be referred ought to have been the same as that stated in the list the defendants Grove and Weymouth, the defendant to which all proceed on the same principle, and we of Saint Saviour's, to which list he referred in the Righy being acquitted, with liberty reserved to do not find any substantial distinction between them notice. On behalf of the said John Brooking it was move to enter the verdict for them on the issues and other actions on the case, for a malicious prose-contended, that by giving his true place of abode, he taken on the above-mentioned pleas, in case the Court cution in civil suits, without probable cause, in which had followed the forms No. 10 and No. 11, schedule should be of opinion there was no evidence to support an allegation of malice is always stated. We are B., referred to in the 17th section of the Registration the verdict for the plaintiff on those issues. The de- therefore of opinion the judgment should be ar- Act, 6 Vict. c. 18, and that the notices were, therefendants accordingly moved for and obtained a rule nisi rested; but as we think that, under all the cir- fore, sufficient. The revising barrister decided that to enter the verdict for them on those issues, and to cumstances of the case, including the arrangement the notices were sufficient, and the qualifications of arrest the judgment for the plaintiff. It appeared under which the order of Mr. Justice Coleridge was the said John Knowles not being proved, his name by the evidence that in 1840 the plaintiff borrowed obtained, there was evidence to go to the jury that was expunged from the list. The question for the the sum of 1,000l. of Grove on mortgage of eight less than the full amount recovered was due, we do opinion of the Court was, whether the said John houses, with power of sale if the mortgage-money not think it proper to disturb the verdict for the plain- Brooking's statement of his true place of abode in were not paid in two years, and also giving two tiff, or to direct it to be entered for the defendant on the said notices was, under the circumstances set months' notice, with covenant on the part of the the point reserved. The rule, therefore, will be ab- forth, sufficient iu law to sustain the said notices mortgagor to repair and insure. The action was solute for arresting the judgment. In the argument, against the said John Knowles, and if the Court were brought against the plaintiff on the covenant to re- no distinction was insisted on as between the case of of that opinion, the Register would stand without pair contained in the mortgage-deed, and by consent Weymouth, the attorney, and the other defendant, amendment. If the Court were of a contrary opinion, judgment was entered up upon a judge's order in the Grove, and as the charge is of doing the act know- the Register would then have to be amended by action for 1,0601. 10s. which it was understood was to ingly, and the jury found knowledge against the de-inserting the names of John Knowles and the other include the mortgage-money and interest. In the early fendant Weymouth as well as Grove; his character of persons whose cases were consolidated with this. part of March 1843, the defendant Grove, to whom the attorney will not protect him; but Righy, who is Kinglake, Serjt., for the appellant. judgment was assigned, and Weymouth as the attorney, the attorney against whom knowledge was not proved, Manning, Serjt., for the respondent. issued a capias ad satisfaciendum on the judgment en- was acquitted. dorsed for 1,0601. 10s. and on the 17th April the plaintiff was taken in execution under it. Between the time of issuing the writ and taking the plaintiff under it various sums were received by the defendants Grove and DE MEDINA v. GROVE. Lord DENMAN, C. J.-This was an action for Weymouth for the purchase of the mortgaged premi-money had and received for the amount recovered ses that had been put up to sale under the power con-under a fi. fa. mentioned in the second count of the tained in the deed, but the premises were to be re- declaration in the action on the case, which judgment paired, and the amount actually received under the has been delivered. The plaintiff obtained a verdict, sales was upwards of 500l. The plaintiff, in order to and the question is, whether money levied under a reprocure a release from imprisonment on the ca. sa. exe-gular execution or a regular judgment unsatisfied can cuted a warrant of attorney for 2,1641. to secure the payment of half that sum; in the November followinga fi. fa. endorsed to levy 3201. issued on the warrant of attorney, and the execution of that forms the ground of complaint in the second count. If the amount of money received for the sale of the mortgaged premises was added to the sums paid by the plaintiffs on their account, and taken in reduction of the sum of 1,0821. the amount secured by the warrant of attorney, the sum of 320l. would not, as the jury have found, have been due on the judgment on the warrant of attorney. We will first consider the objection that arises upon the pleadings. The action in form is unusual. The judgments stated in each of the cases are regular, for all that appears on this point; they appear, on the face of the declaration, to be unsatisfied; there is no averment of malice or want of reasonable and probable cause for enforcing them to the extent to which they were enforced. But the ground of action is, that the judgments have be recovered back again as for money had and received JUDGMENT. TINDAL, C. J.-The question reserved for our determination, by the revising barrister, in this case is, whether the notices of objection against the name of a person being retained on the list of voters for the borough, which notices were signed by him, as objector, with the addition of his true place of abode, but being another and different place from that inserted against his name on the list of voters, are sufficient? The revising barrister held the notices to be sufficient; and although the question may be subject to considerable doubt, and one of my learned brothers, for whose judgment I entertain the greatest respect, thinks differently, the opinion I have been compelled to arrive at is, that the revising barrister's decision was right. The forms of the two notices upon which the precise question turns are those numbered 10 and 11 in Schedule B. in the Registration Act, 6 Vict. c. 18; and it is on the construction of those forms that the question must mainly turn. But it may receive some light from the consideration of the forms numbered, 4 and 5 in Schedule A. of the same Act, and also the form since repealed given in Schedules H. and I. in the statute 2 Wm. 4, c. 45. The forms in question numbered 10 and 11 in Schedule B. each concludes thus: "Signed, A. B. of;" then there is "place of abode" in parentheses, "on the list of voters for the parish of --;" and the appellant contends that these latter words operate as a direction given to the objector that he must fill up the " place of abode," by insert ing it against his name, on the list of voters;" but the respondent, on the other hand, contends that those words mean no more than a simple allegation that the objector's name is on the list of voters, as it was required it should be by section 17 of the statute; for, it is to be observed, that the 17th section requires only that the name of the objector shall have been inserted in the list of voters for the borough, and that he shall give the notice of objection to the overseers according to the form numbered 10 in the Schedule B. "or to the like effect;" and that he shall also cause to be given or left at the place of abode of the person objected to, as stated in the same list, the notice according to the form num bered 11 in the same schedule; so that the question substantially turns upon the construction of the form so referred to and given in the statute. And it appears to me that, looking to the concluding words of those two forms, they could not in any manner qualify the sense of what had preceeded, namely, the "place of abode," nor in any manner refer to the place of abode contained in the list of voters; but that the whole sentence is satisfied if the true place of abode of the objector, at the time of giving the notice, is inserted in the notice. The words between the parentheses are only "place of abode;" words which, taken absolutely and by themselves, and in their natural sense, would denote the true place of abode of the party objecting; for the words between the parentheses are not 'place of abode on the list of voters," which necessarily require the construction contended for by the appellant; nor are the words as" in the list of voters," which latter form would also necessarily have required the same construction; but the words within the parentheses are simply "place of abode," and the words that follow contain a separate and distinct proposition, that such name, and not such "place of abode," is to be found in the list of voters. And it appears to me to confirm this construction of the form that the 17th sec TINDAL, C. J.-My brother Maule is not able to attend to-day, but he has given his judgment to my brother Erle, who will read it for him. cient answer that no real difficulty can follow, unless 66 tion gives these two forms of notices. The notice that (Signed) A B, of (place of abode), on the list of voters for the parish of The question is, whether this provision as to the notices has been complied with; in other words, whether a notice is sufficient which wholly omits all mention of the place of abode of the objector as it appears on the list of voters. For the appellant it was insisted, that this section of the Act required the place of abode of the objector as it appeared on the list of voters to which the notice refers, and that it must appear on the notice; for, in cases where there has been a mistake in the list of voters, or a change of abode since it was made out, it might or might not be necessary to add a mention of "the place of abode" at the date of the objection. For the respondent it was contended the place of abode required to be mentioned was that at the date of the objection, and that the Act did not require any mention of the place of abode as it appeared on the list of voters. And the question to be decided depends upon the construction of the 17th section of 6 Victoria, c. 18, and the notice of objection therein prescribed. It may be convenient to consider the general nature and purposes of the Act in which the section in question occurs. The Act 2 Wm. 4, c. 45, “For the better Representation of the People of England and Wales," contains, as incidental to the important changes it makes, certain provisions for forming the register of persons entitled to vote for members of Parlament. These provisions having been insufficient, the Act 6 Vict. c. 18 was passed, of which the principal object was to make a new set of regulations for forming the register of voters. This Act has accordingly made many additions to, and alterations in, the provisions relating to the Registration Act of William; among which are to be noticed first, the Act of William, that gives in section 39 the power of objecting to the names of persons being retained on the list of voters in counties, not only to persons "on the register," but those who had claimed to be inserted "on the list of voters," whether actually inserted or not; while the Act of Victoria, by section 17, contains such a power of objecting to persons whose names are on the register; secondly, that in the forms given of the list of voters and claimants, and persons objected to in cities and boroughs, in the Act of William, no mention of the place of abode is required, except in the cases of freemen, the rights of voting not depending there upon property; whereas, in the case of county voters, the place of abode was to be inserted. So that in the case of borough voters on the register, therefore, many voters underthat Act could be described by their Christian and surname only, without any addition of place of abode. This is altered by the Act of Victoria, which requires in all cases, without exception, both in counties and boroughs, the place of abode, as well as the name, shall appear on the list. The third alteration is in the form of notices of objection, which under the Act of William did not contain any statement that the objector "was on the register," or was one of the claimants in a county, or was "on the list" of voters in a borough; and did not in any other manner shew he was one of the class of persons to whom the right of objecting belonged. The Act of Victoria in all cases, with one exception, to be hereafter noticed, requires the objector to describe himself as "on the register" or "list of voters," and to refer particularly to the parish, on "the register," or "the list." The object of these alterations probably was, to identify persons mentioned in the list more completely, so as to enable those whom it concerned to register" in connexion with the words "place of know in an easy and certain manner who the person | according to the Act, confirms this construction of the notice, and the omission of the words "on the meant was, and to enable the party objected to, on the natural and obvious meaning of the words "on referring to the list or portion of the register men- the list of voters for the parish of St. Mary," followtioned, to ascertain whether the objector had shewn ing "John Smith, of Broad-street," to use the same himself to have a right to object; and in case of its example; and as the name of "John Smith," and not appearing that he had such a right, to enable "Broad-street," are mentioned in the list, the name him instantly to disregard the objection, which the of the objector is the person whose name and present revising barrister would be bound to treat as not place of abode is "John Smith, of Broad-street," but sufficient, and to call upon him to prove his qualifi- whose name and "place of abode," "on the list," -"and no such words as "on the list of voters for cation. The alterations are not only more adapted may be the same or a different one. It cannot really the parish of --," which occurred in the last part to effect this purpose, but they are also in conformity be denied in the absence of the parenthesis, that the of the notice, and which, as I have said before, alone to the law, which in many cases has made it neces- words "on the register of voters for the parish of St. refer to the place of abode as that mentioned on the sary, and which general convenience has in almost Mary," are meant to operate in like manner over the register. In this last it would be surplusage to put all cases made it desirable, to identify the person by whole clause, "John Smith of Broad-street;" or it within the parenthesis "as described on the register,' means of his Christian and surname, as well as his operates on no part of it; for it seems difficult to because "on the register of voters for the parish of "place of abode ;" and they are in conformity also contend that they operate differently on the words means exactly the same thing. With regard with the rule, which, in cases of special authority or "John Smith," and on the intervening words of to the comparative convenience in practice of the two power to be exercised in writing, requires that the per- "Broad-street," so as to mean that the name of the forms, there is no doubt that of the appellant is to be son assuming to exercise it should be one of those to voter "on the list" was "John Smith," but not to preferred; it enables the party, objected to before the whom it belongs. The former notice, before referred to, mean the "place of abode," at the time, was "Broad-revising barrister, to ascertain, by inspection of the is an exception to the general rule; and under the Act street ;" and accordingly it was argued for the re- notices and the list, without any extrinsic evidence, of Victoria, the forms of notices of objection require spondent that the words "on the list," &c. did not whether the notice is sufficient, inasmuch as under the objector to describe himself as "on the register" import either the name of "John Smith," or the that construction it would appear the place of abode or "list." This confirms the view, that the mean- "place of abode," "Broad-street," which was is the same as that on the register. No question at ing of this form is to enable the party objected to to mentioned on the list. That is certainly a more all, in fact, can be made as to its validity; whereas if refer to the list or the register to ascertain whether reasonable construction than that which treats the respondent's construction is to previal, many questhe objector is to be found upon it. That exception the words the list, &c." as operating tions of law will probably arise as to what is a sufficient is the form numbered 4 in the schedule of the Act on the words "John Smith," and as having no description in the notice as to "place of abode," of Victoria; which form is not a notice to the party operation on the intervening words "of Broad- whether county, parish, or post-town is mentioned, objected to, but to the overseers of the county; and street;" which construction seems to rest on a and these will be the more numerous and formidable this form concludes with the words "A B (place of tacit but erroneous application of the parenthesis from the uncertainty of what the object was by the abode)," without any statement of the objector being which is found in the form, and the words of the insertion of the "present place of abode " as required on the register. Now, it is to be observed, the over- actual notice in which it is not found; which notice by the Act; as in all cases it must be a matter of seers have no concern whatever with the question is to be understood as not merely affirming that the evidence-it may be, of controversy, before the whether the objector is on the register or not. By objector is "on the list of voters," but that he has revising barrister, whether the place of abode be section 8 of the Act of Victoria, they are required to the right to object; and, on referring to the particular truly stated as it appears, or not. It was also sugpublish a list of persons against whom notices of ob- entry, that is further confirmed by the form requiring gested that the identification of the voter by his jection have been given to them; and, by section 34, the notices to be specified on a particular list in which "place of abode, on the list," was unnecessary, except to bring the original notices before the revising the objector is to be found. If it were intended as a in the case of two voters of the same name being on barrister, who, and not the overseers, is to be mere assertion of the right to object, it would be suf- the list, but this is answered by referring to the conjudge of their sufficiency. The overseers have no ficient to state the objector was on the list of voters venience arising from the rule by the insertion of the interest or duty calling upon them to ascertain for the borough, and, in the corresponding case of the Christian name, surname, and place of abode; all whether the objector is on the list, and a refer- county, that the objector was on the register without three may be necessary in some cases, and they are ence to it would not assist, but might embarrass seeing to the requirement of the Schedule No. 5, required in all for the sake of uniformity, simplicity, them, as it might be calling upon them to refer to the whether it was published; as long as the particular and convenience. I think, for these reasons, that a list of the whole county. This view is in conformity list is referred to, it is needful that the particular due consideration of the principles of law that are with section 3 of the Act, that requires the clerk of entry should also be referred to as being in further-applicable to the case, and the general intent of the the peace to send to the overseer a copy only of such ance of the same object. It was contended for the Registration Act, and the true meaning of the parpart of the register as relates to his parish; thus treat- respondent that by the construction contended for ticular provision that relates to the notices, tends to ing him as a person who could have no concern with by the appellant, the voters who might wish to the conclusion that the appellant's construction is the the parts of the register relating to other parishes. It communicate with the objector must be prevented true one, and it avoids great practical inconvenience was not denied, on the part of the respondent, that the doing so in the case of an objector whose present that would arise from the adoption of that of the notices of objection in question ought to contain an place of abode was different from that on the list, as respondent, and, consequently, the decision of the assertion of the right to object; but it was contended that must be the list referred to, whether this differ- revising barrister ought to be reversed. that it was sufficiently stated in the words as con- ence arises from error or change. It is doubtful tained, on the list of voters for the parish of whether the Act contemplated any such communicaand that the preceding words, "A B (place of abode)," tion; it does not authorise or require it; it imposes were intended to require a statement of the name in no duty to make, nor confers any right on the voter to addition. The objector is inserted in the list with his make such a communication; but if it did contemplate name on ly, and without the addition, at the time of such communication, such would most probably be signing the notice. It is material in this part of the very rare, and cases of error or change are a very discussion to observe that the immediate object of in- small portion of the number of cases that can arise; quiry is, what is the meaning of a notice filled up ac- such cases of change that would prevent the objector cording to the form? for it is such a notice, and not being reached by a letter directed to him at his place the form itself, that is sent to the party objected of abode on the list, must be a very small portion of In this case John Thornley duly objected to the to. Want of attending to this has, I think, pro- the whole number of cases of error or change; and names of James Murray and William McConnell duced some confusion. The form of notice has the it may be observed in the case now in judg-being retained in the list, in respect of the qualificawords "place of abode," in italics, within a paren- ment, no such inconvenience did occur. The le- tions following. thesis; then the words "A B" (on the list of voters); gislature in the more important cases of notices Opposite the name of James Murray, "the Nature and this parenthesis is not to be retained in the notice of objection, where perhaps it would be more of Qualification " was described as an "Undivided when drawn, but is only meant to shew the words reasonable that the voter would have a right share of Freehold Rent Charge," and under head of within it are not to be the very words in the notice, to receive it, have considered that it is sufficient" Where situate, &c.," was set forth "Giles Bury, but are only a direction as to what those words shall to send the notice to the "place of abode" mentioned be. And this is manifest from the word" of" being in "the list." Indeed the whole scope of the act of not within the parenthesis, so that the notice ac- Victoria seems to be that for all purposes connected cording to the form, to take an example, would run with the registration, the description on "the list," thus:-"John Smith, of Broad-street, on the list of with the name and place of abode, shall be taken to voters for the parish of St. Mary," without any pa- be the true description; and the effect of this provi- A grant and conveyance to the said James Murray renthesis. The question is, how a notice in these sion will undoubtedly be, that every voter who takes and William Mc Connell and their heirs, of 61. 3s., words should be understood? and it is a mistake to an interest in the election will take care the notices, if issuing out of freehold lands of adequate value was treat it as if the parenthesis was retained. It is to directed with the name and place of abode on the list, produced before the revising barrister, dated the 29th be observed, the right to object given by the Act of shall be forwarded to him. But even supposing it January, 1845. This rent charge had been created by Victoria was not dependent on the right to be put on was the object and intent of the Act to enable the a deed, dated the 28th January, 1815, by which it was the list, for a party may have a right to be on the party objected to to communicate with the objector, granted as follows: "One clear yearly rent-charge or list, but he may have no right to object; if, in fact, a distinct statement of the right of the objector is sum of 61. 3s. on the 1st day of January in every year, his name is not inserted on the list, he may have no more important and desirable than the mere mention the first payment to become due and be made on the right to be put on; or, if on the list, he yet may of the name. Though this purpose be the one which 1st day of January then next following." It was obhave a right to object in respect of being, in fact, on the notice was intended to effect, it may be, in cases jected that rent was an incorporate hereditament, and the list, the right to object being entirely dependent of error of places of abode. that the notices should as such not capable of being possessed, except by the on some one entry "on the list of voters," whether the actually have the present description of the place of act of receiving, or that at all events the claimants name and place of abode be correctly stated in such abode as well as that on the list of voters; but could not be said to be possessed, or in the actual eutry or not. It seems to me, where the construction it does not follow it shall suffice if there is receipt of rent until it became due, and that inasmuch of the forms is more in conformity with general rules a mere mention of the place of abode as mentioned as the first payment of the said rent would not become of law, and the intention of the Act of Victoria, which 66 on the list." An argument was drawn from Sche- due until the 1st of January, 1846, the claimants had requires the notices to be made out distinctly, that, of dule A, No. 5, where, in the notice of objection, the not been possessed of the hereditaments, in respect of all entries on the list which is to be relied on is the form was given thus: "To Mr. of, (here which they claimed to be registered, for 6 calendar foundation of the right to object; thus not merely insert the name and place of abode of the person ob-months previous to the last day of July, 1845, as regiving the right of making a general assertion, from jected to as described in the list; and in the case of quired by the 2 Will. 4, c. 45, s. 46. which it would be inferred, but making it in con- notice to the tenant of the qualifying property insert The revising barrister decided that the names of the formity with the rule that prevails with respect to the his name and place of abode as described in the list.)" objection-the power and authority-by correctly At the end of the form it is "(Signed) A B, of stating a particular fact, on which the right depends, of (place of abode), on the register of voters for the enabling the voter to ascertain, by a simple inspection parish of," in the same words as the form in of the list referred to, whether the right to object, question, only putting "the register" for "the list which is relied upon, does really exist. A more of voters." Here it is said the insertion of the words minute consideration of the forms of notice, drawn "as described" between the last and the first parts of -, NORTH DIVISION OF CHESHIRE. MCCONNELL, Appellant, and THORNELEY, Respondent. The mere execution by the grantee of a deed of rentcharge is not sufficient. The words "actual possession," meaning the actual money receipt of the rent itself, or some part, or something else in lieu of the rent. Joseph Bury, and Thomas Steel, owners of the property out of which same is issuing, situation No. 15. Higher Hillgate, Stockport." The "Qualification," Where situate, &c.," of William McConnell was described in precisely the same words. said William McConnell and James Murray be expunged from the list, and upon the point of law in question, was of opinion that the claimants had not been possessed or in the actual receipt of the said rentcharge in respect of which they claimed to be registered for six calendar months, next previous to the last day of July, 1846. ent. JUDGMENT. Cockburn, Q. C. and Kinglake Serj., with him, charges are of a private nature, and, therefore, liable for the appellant. to fraudulent practices in the election of knights Channell, Serjt., Welsby with him, for the respond-of shires in elections, enacts that no person shall vote in respect of any annuity or rent-charge, unless a certificate upon oath shall have been entered, twelve calendar months before the first day of such election, with the clerk of the peace for the county, riding, or division, or with the clerk of the peace, town clerk, or other public officer having the custody of the records within such city or town where such lands or tenements lie." This statute is repealed by the statute 6 Vict. c. 18; and as no other provision is enacted as to the right to vote, it will be inferred that under the 2 Wm. 4, c. 45, s. 26, the Legislature intended more than the mere execution of the deed, by requiring also actual possession for six calendar months. We therefore think the revising barrister is right, and affirm the decision. Decision affirmed. 66 CITY OF LONDON. JUDSON, Appellant, and LUCKETT, Respondent. meaning of the 27th section of 2 Wm. 4, c. 45. name under that of the landlord, but nothing was carried out under the name of the appellant, nor were the names connected by brackets, or otherwise, and on this state of facts the barrister held the appellant not rated. We think on this state of facts the name is on the rate, as a person charged to the rate, which might well be considered to charge the appellant, in respect of the premises inserted opposite the landlord's name in the line above, just as if the word "ditto" had been inserted without any bracket to connect it. We think, therefore, the revising barrister was wrong on both these points, and that his decision should be reversed, and the name of the appellant restored. Decision reversed. BOROUGH OF CHATHAM. COLVILLE, Appellant, and THE Overseers of CHATHAM, Respondents. The rent which the tenant pays to the landlord of a house in a borough is the proper criterion of value, without deducting the landlord's charge for repairs, &c. George Colville, on the list of voters for the said borough within the parish of Chatham, having duly objected to George Huben, of Chatham-hill, and William Jolley, of Chatham-hill, on the same list, as not being entitled to have their names retained on such list. It appeared that each of them, the said George Huben and William Jolley, claimed to be so In this case, William Endell Luckett duly objected entitled in respect of a house in the said parish; and to the name of Henry William Judson being retained that they had respectively occupied such houses on the list of persons entitled to vote in the election during the required period at the yearly rent of 101. of members for the City of London, in respect of the exclusive of rates and taxes; and that there was no occupation of "part of a house," 22, Cannon-street, special agreement between them and their respective landlords as to repairs or insurance. It further apin the parish of St. Swithin, London-stone. Before the revising barrister it was contended, on peared that the said rent of 101. was in each case the behalf of the respondent, that the qualification of the fair rent of the premises. In support of the said obappellant, as stated in the said list, was insufficient injection it was contended that the proper measure of law to entitle him to vote, and therefore that the the clear annual value of a house within the meaning revising barrister must expunge the name of the of the 2 Wm. 4, c. 48, s. 27, was not the rent for appellant, under the 40th section of the 6th Vict. c. which such house would let to a tenant, but the 18; and on behalf of the appellant, that the qualifi- amount of such rent after deducting therefrom the cation, as stated in the said list, was sufficient, or if average annual expense of landlord's repairs and the not, the description of the premises in the occupation insurance, and consequently that the houses in quesof the appellant, as part of a house," was a mis- tion were out of the clear annual value of 101. Being take which could be proved to have been made in the however of the opinion that the fair annual rent was said list, which mistake the revising barrister, by the the proper criterion of value without any such desame section, had power to correct. duction, I so decided; and the right of the said parties to be retained on the list being established in all other respects, they were retained accordingly. one appeared on the other side. Kinglake, Serjt. appeared for the appellant: no 66 JUDGMENT. served by the revising barrister for our determination TINDAL, C.J.-In this case the point of law re TINDAL, C. J.-In this case, the claim to the right to vote was in respect of a freehold rentcharge; the rent-charge was created by deed, bearing date the 28th of January, 1845, by which a sum was made payable on the 1st of January, every year; and the first was to become due and payable on the 1st of January, 1846. The objection taken before the revising barrister was, that the claimant had no title to be duly registered, inasmuch as he had not been in the actual possession, or in the receipt of the rents and profits, six calendar months at least, next before the last day of July, which preceded the registration, as required by the 26 Section, 2 Wm. 4, c. 45. The revising barrister allowed the objection, and directed the name of the claimant to be expunged, and after the argument which has been held before us, it appears to my brothers, Creswell, Erle, and myself, that the decision of the revising barrister is right. My brother Maule, not having been present during the whole of the argument, declines giving any opinion. It was contended, on the part of the appellant, that he had a clear right to the rent-charge, from the time of the execution of the deed by which it was granted; and that he had an actual possession also within the meaning of the statute, because he had all the possession of which the subject-matter was capable from the first day of that year. The question turns upon the meaning of the words "actual possession ;" and we think they mean a possession in fact, as contradistinguished from a possession in law, and that the possession in fact of a rent-charge must be the actual money receipt of the rent itself, or some part of it, or something else in lieu of it; and so there could be no such possession in fact in this case, for the first payment did not become due till after the expiration of the month of July, when nothing took place beyond the mere execution of the deed. There is a long course of authorities fully establishing the distinction between the possession and seisin in fact of a rent-charge, and a possession and seisin in law. Lyttleton, section 235, is an authority in point: "And so it is if a man grant by his deed a yearly rent issuing out of his land to another, &c., and if the grantor then or after pay to the grantee a penny or a The revising barrister thereupon received evidence half-penny, in the name of seisin of the rent, then if after the next day of payment the rent be devised the of the actual nature of the appellant's qualification, and it was proved that he occupied the upper part of grantee may have an assize, or else not," &c. the said house, and the kitchen, having a distinct and Lord Coke in his Commentaries on this section is separate entrance thereto, of the key where of he equally decisive: he says, By this (&c.) is implied had the exclusive possession. His landlord occupied that the grant and delivery of the deed is no seisin the ground floor as a shop, having also a distinct and of the rent; and that a seisin in law, which the grantee hath by the grant, is not sufficient to main- separate entrance thereto. The appellant's name tain an assize or any other real action, but there was inserted in all the poor's rates made in the said was, whether in the case of a person claiming a right must be an actual seisin ;" Comyn's Digest, Title parish, in the year ending the 31st July, 1845, under to vote for the borough by reason of the occupation "Seisin" C. and also the older authorities' there that of his landlord's, but nothing was carried out of a house as tenant, the bare annual rent was a proper criterion of the value without deductbrought together, establishing the distinction in such against the name of the appellant, nor were the names ing the average annual expenses of the landlord's of the appellant and his landlord connected by bracket or otherwise, in the rate book. The assist- repairs? And we are of opinion the revising barant overseer of the parish stated in his evidence that without making such deductions, to be the clear yearly rister was right in holding the bare annual rent, it was the intention of the overseers, in putting the value, within the meaning of the statute 2 Wm. 4, appellant's name on the rate-book, to rate both. It was further contended, on behalf of the respon-C. 45, s. 27. It was, indeed, contended before the dent, that the appellant was not rated to the relief of revising barrister not only that the average annual value of the landlord's repairs should be deducted from the rent paid by the occupier, but the landlord's expense of insurance also. But this latter appears so landlord, who, if he thinks right, may be, and very often plainly to be a voluntary charge on the part of the is, his own insurer, that we declared our opinion in the course of the argument, that insurance never could be held a necessary deduction, in order to ascertain the clear yearly value of the premises; and we think the same as to the deduction of the landlord's repairs. This is the case of the occupier of a house as tenant, who pays a rent of ten pounds per annum, exclusive of rates and taxes; that is, so far as the tenant is concerned, a clear yearly rent to the landlord of ten pounds per annum. But the statute requires that the house must be of the clear yearly value of ten pounds in order to confer a qualification; it is undoubtedly not enough to find that the tenant pays a rent of that amount, for it is manifest such rent is not necessarily a measure of the true value; it may be exorbitant, and such as no other tenant would give, or may have been fraudulently fixed at that sum in order to acquire the vote. It is necessary, therefore, in order to satisfy the statute, to shew further the house is of that clear yearly value; and it is found in the case before us ten pounds per annum is the fair rent of the premises; and whether this is proved of the clear yearly value is the question before us. There is some difficulty in ascertaining the true meaning of the Act in the use of the expression. When the right to vote depended as it did formerly on property only, there was no difficulty in discovering its yearly value in the case of counties; thus the 8th Hen. 6, c. 7, ordained that the knights of the shire should be chosen by the people, whereof every one should have a freehold land or tenement to the value of 40s. by the year, at least, above all charges. And again, when the 18th Geo. 2, c. 18, s. 5, enacts, that "no person should vote in any such respect, between seisin in law and seisin in fact, or as it is called an "actual seisin." And this appears the more distinctly in the Commentary of Lord Coke in the 8th section, in regard to the doctrine of possessio fratus, where he says, "What, then, is the law of a rent advowson, or such things that lie in grant? If a rent or an advowson do descend to the eldest SOD, and he dieth before he hath seisin of the rent, or present to the church, the rent or advowson shall descend to the youngest son, for that he must make himself heir to his father." Though such a seizin is distinguished by Lord Coke from the case of a "tenant by courtesie," which shall be in favour of the husband for the rent due, though his wife die before the rent is paid, it makes no difference as to the present argument. The "actual possession of rent" is a well-known legal phrase or expression; and the legislature cannot be taken to have used it in any other than such well-known sense, or contradistinguished from possession in law or right to a rent-charge, as the delivery of a deed of grant would confer; and when it is said the authorities only shew that such a seisin, in fact, is necessary, in order to maintain a charge in case of possessio fratris, it by no means follows that it is necessary to confer a vote. The answer is, that it is a mere assumption on the part of the appellant that the expression is used in the statute in a limited and restricted sense; at all events, the burthen of proving this is cast on the appellant. The statute having used the expression in regard to the right of the claimant to be put upon the register-as it was quite clear in the case of rent, it must mean, in the execution of a conveyance, the actual possession and receipt of the rents and profits, there seems no reason why, in the case of incorporeal hereditaments, to which the provision of the statute equally applies, there should not be such an actual possession as the nature of the subject-matter is capable of. Accordingly, by the various Acts down to the 2 Wm. 4, the legislature has made simply a provision in the very same terms for the prevention of acquiring freeholds for the purpose of voting; such as the 10 Geo. 2, c. 10, requiring actual possession for twelve calendar months before; and also the 3 Geo. 3, c. 14, which, after reciting "that annuities and rent the poor. The revising barrister decided that the qualification of the appellant, as stated in the said list, was insufficient in law to entitle him to vote, and that he, the revising barrister had no power to change the description of the said qualification, and further that the appellant was not duly rated. Welsby for the appellant. JUDGMENT. TINDAL, C. J.-In this case the nature of the qualification, in respect of which the appellant claims to be placed on the list of voters made out by the overseers, is part of a house; the revising barrister held the description to be insufficient. The question reserved is, whether such a description is sufficient in point of law. We have already laid down, in more than one instance, the mere oocupation by a party of portion of a house is an occupation separated from the residue, so as to constitute an occupation as a tenant within the meaning of the 27th section of 2 Wm. 4; and in this case no question is raised as to the occupation being separate in that respect, but solely on the point whether the description of the qualification on the list is sufficient. We think it is; it is precisely true in fact, according to the common understanding of the word, and may well denote such a case as will confer (and we must take it in this case that it does confer) a qualification. It becomes, therefore, unnecessary to consider the second point reserved, namely, whether the revisiug barrister had the power of amending under the 40th section of the Registration Act. The third point reserved was as to the rating. It appeared the landlord occupied one part of the house and the appellant the other; no question being before us as to the sufficiency of the occupation. The landlord's name was on the rate for the house opposite to his name, and the appellant's |